Citation Nr: 0010914
Decision Date: 04/25/00 Archive Date: 05/04/00
DOCKET NO. 98-19 771A ) DATE
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THE ISSUE
Whether clear and unmistakable error (CUE) was involved in a
July 8, 1998, Board of Veterans' Appeals (Board) decision
which denied an appeal by the veteran on the issue of
entitlement to service connection for peripheral neuropathy
of the left leg and feet, claimed as secondary to exposure to
Agent Orange.
REPRESENTATION
Moving Party Represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
J. D. Parker, Counsel
INTRODUCTION
The veteran (also hereinafter referred to as the moving
party) served on active duty from July 1958 to August 1978.
A motion by the veteran for reconsideration of the Board's
July 8, 1998, decision, was denied on January 13, 1999. The
veteran has now filed a motion for revision of the Board's
July 8, 1998, decision on the basis of clear and unmistakable
error.
FINDINGS OF FACT
1. By decision dated July 8, 1998, the Board denied an
appeal on the issue of entitlement to service connection for
peripheral neuropathy of the left leg and feet, claimed as
secondary to exposure to Agent Orange, on the basis that the
underlying claim was not well-grounded.
2. The veteran has not clearly and specifically alleged an
error of fact, or error of interpretation or application of
statute or regulation in the July 8, 1998, Board decision.
CONCLUSION OF LAW
The motion for revision of the July 8, 1998, Board decision
which denied an appeal on the issue of entitlement to service
connection for peripheral neuropathy of the left leg and
feet, claimed as secondary to exposure to Agent Orange, is
without legal merit. 38 U.S.C.A. § 7111 (West 1991); 38
C.F.R. §§ 20.1403(a), 20.1404(b) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under 38 U.S.C.A. § 7111, the Board has been granted the
authority to revise a prior decision of the Board on the
grounds of CUE. A claim requesting review under this statute
may be filed at any time after the underlying decision is
made. Pursuant to a recently issued opinion of the VA
General Counsel, VAOPGCPREC 1-98, the Board's authority
applies to any claim pending on or filed after the date of
enactment of the statute, November 21, 1997. See 38 C.F.R.
§ 20.1400.
The statute and implementing regulation provide that a
decision by the Board is subject to revision on the grounds
of CUE. If evidence establishes the error, the prior
decision shall be reversed or revised. A request for
revision of a Board decision based on CUE may be instituted
by the Board on its own motion or upon request of the
claimant. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400.
In the implementing regulation, CUE is defined as:
a very specific and rare kind of error,
of fact or law, that when called to the
attention of later reviewers compels the
conclusion, to which reasonable minds
could not differ, that the result would
have been manifestly different but for
the error. Generally, either the correct
facts, as they were known at the time,
were not before the Board, or the
statutory and regulatory provisions
extant at the time were incorrectly
applied.
38 C.F.R. § 20.1403(a).
The evidence to be reviewed for clear and unmistakable error
in a prior Board decision must be based on the record and the
law that existed when that decision was made. For a Board
decision issued on or after July 21, 1992, the record to be
reviewed includes relevant documents possessed by VA not
later than 90 days before such record was transferred to the
Board for review in reaching that decision, provided that the
documents could reasonably be expected to be part of the
record. 38 C.F.R. § 20.1403(b). To warrant revision of a
Board decision on the grounds of CUE, there must have been an
error in the Board's adjudication of the appeal which, had it
not been made, would have manifestly changed the outcome when
it was made. If it is not absolutely clear that a different
result would have ensued, the error complained of cannot be
clear and unmistakable. 38 C.F.R. § 20.1403(c). Examples of
situations that are not CUE are: (1) Changed diagnosis. A
new medical diagnosis that "corrects" an earlier diagnosis
considered in a Board decision. (2) Duty to assist. The
Secretary's failure to fulfill the duty to assist. (3)
Evaluation of evidence. A disagreement as to how the facts
were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does
not include the otherwise correct application of a statute or
regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of
the statute or regulation. 38 C.F.R. § 20.1403(e).
In other cases prior to promulgation of this regulation, the
United States Court of Appeals for Veterans Claims (Court)
has defined CUE as an administrative failure to apply the
correct statutory and regulatory provisions to the correct
and relevant facts. See Oppenheimer v. Derwinski, 1 Vet.
App. 370, 372 (1991). The Court has also held that a finding
that there was such error "must be based on the record and
the law that existed at the time of the prior . . .
decision." Russell v. Derwinski,
3 Vet. App. 310, 313-14 (1992). Subsequently developed
evidence may not be considered in determining whether error
existed in the prior decision. Porter v. Brown, 5 Vet. App.
233, 235-36 (1993).
The mere misinterpretation of facts does not constitute clear
and unmistakable error. Thompson v. Derwinski, 1 Vet. App.
251, 253 (1991). Moreover, the error must be one which would
have manifestly changed the outcome at the time that it was
made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993).
"It is a kind of error, of fact or of law, that when called
to the attention of later reviewers, compels the conclusion,
to which reasonable minds cannot differ, that the results
would have been manifestly different but for the error."
Fugo v. Brown, 6 Vet. App. 40, 43 (1993).
The veteran has challenged a July 8, 1998, Board decision.
In that decision, the Board reviewed an appeal by the veteran
on the issue of entitlement to service connection for
peripheral neuropathy of the left leg and feet, claimed as
secondary to exposure to Agent Orange. The Board denied the
appeal on the basis that the underlying claim was not well-
grounded. In order for a service connection claim to be
well-grounded, there must be competent evidence: i) of
current disability (a medical diagnosis); ii) of incurrence
or aggravation of a disease or injury in service (lay or
medical evidence), and; iii) of a nexus between the inservice
injury or disease and the current disability (medical
evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
In this case, in a June 1999 letter subsequent to a denial of
motion for reconsideration, the veteran effectively entered a
motion for revision of the Board's July 1998 decision on the
basis of CUE. The essential contention advanced by the
veteran is that a newsletter published by VA stated that
Vietnam veterans exposed to Agent Orange and afflicted with
neuropathy were entitled to compensation. The veteran
contends that the article in the VA newsletter stated that
Vietnam veterans exposed to Agent Orange who develop
neuropathy are entitled to VA compensation, and that Vietnam
veterans are not required to prove exposure to Agent Orange
because VA presumes all military personnel who served in
Vietnam were exposed to Agent Orange. The veteran further
contends that, because the article in the VA newsletter did
not state that neuropathy must occur within one year of
leaving service, the article was binding on the Board. He
therefore essentially maintains that the July 1998 Board
decision (which did not find that the presumption applied so
as to provide the necessary link to service) denying his
claim as not well grounded was CUE.
After a review of the evidence that existed at the time of
the July 1998 Board decision, the Board finds that the
veteran has not proffered a legally cognizable claim of CUE
in the July 1998 Board decision. That is, the veteran in
this case has not set forth specific allegations of error, of
either fact or law, which would warrant a finding of CUE.
To the extent that the veteran argues that the Board was in
error for failing to abide by the information furnished in
the VA newsletter, the Board declines to view this assertion
as an effective challenge to the Board's application of an
actual statute or regulation since the veteran is not
specifically citing to a statute passed by the Congress or a
regulation promulgated by VA. The controlling regulation is
38 C.F.R. § 3.309(e) which lists acute and subacute
peripheral neuropathy as disability which may be presumed to
be related to service if other conditions are met. Under 38
C.F.R. § 3.307(a)(6 )(ii), acute and subacute peripheral
neuropathy must become manifest to a degree of 10 percent or
more within a year after the last date on which the veteran
was exposed to an herbicide agent. The Board is bound by
applicable statutory and regulatory law. See generally 38
U.S.C.A. § 7104. The referenced VA newsletter does not
constitute a statute or regulation, and the veteran has not
specifically challenged the Board's application of the
controlling law as set forth in the actual regulations. An
allegation of CUE of law must clearly and specifically allege
that "statutory or regulatory provisions extant at the time
were incorrectly applied." 38 C.F.R. § 20.1403(a). The
veteran appears to argue that VA is bound by the newsletter
because it did not mention any one year period during which
acute or subacute peripheral neuropathy must become manifest.
The Board does not view this argument as an effective
challenge to the Board's application of the actual law in
effect at that time.
Moreover, if the Board were to view the veteran's argument as
specifically challenging for CUE purposes the law in effect
at the time of the prior Board decision, his motion would
nevertheless be denied because the Board correctly applied
the law in July 1998. It is well-settled that payment of
government benefits must be authorized by statute, and the
fact that erroneous information may have been furnished
cannot be used to estop the government from denying benefits.
McTighe v. Brown, 7 Vet.App. 29, 30 (1994) (citing OPM v.
Richmond, 496 U.S. 414, 424 (1990). In other words,
regardless of any omissions and/or inaccuracies in the VA
newsletter, the laws passed by the Congress and the
regulations promulgated by VA were correctly applied by the
Board.
To the extent that the veteran's contentions are that service
connection should have been granted because he is a Vietnam
veteran with neuropathy, this is essentially a disagreement
with the outcome of this decision. As the veteran's
representative indicated in the September 1999 brief in
support of the veteran's claim, the 'motion essentially
reiterates previous contentions of records that his
peripheral neuropathy was caused by exposure to the
herbicide." However, a disagreement with the outcome of the
decision is not CUE, as a disagreement as to how the facts
were weighed or evaluated cannot constitute a claim of CUE.
38 C.F.R. § 20.1403(d)(3).
After reviewing the record, the Board is unable to find that
the veteran has advanced a sufficient allegation of clear and
unmistakable error in the July 8, 1998, Board decision. The
Court has held that where, as in this case, there is no
entitlement under the law to the benefit sought, the appeal
must be terminated or denied. See Sabonis v. Brown, 6 Vet.
App. 426 (1994). Because the veteran in this case has not
set forth specific allegations of error of either fact or law
which would warrant a finding of CUE, the Board must find
that the motion for revision of the July 8, 1998, decision to
deny an appeal on the issue of entitlement to service
connection for peripheral neuropathy of the left leg and
feet, claimed as secondary to exposure to Agent Orange, is
without legal merit, and must be denied. 38 U.S.C.A. § 7111;
38 C.F.R. §§ 20.1403(a), 20.1404(b).
ORDER
The motion is denied.
ALAN S. PEEVY
Member, Board of Veterans' Appeals